A historic settlement was reached on Thursday. But buried in the fine print is a twist.
The contractor psychologists who designed the CIA’s torture program earned a $81 million fortune from that brutality. But now that they’ve reached a settlement with some of the agency’s torture victims, taxpayers are likely to be left footing their legal costs.
On Thursday, James Mitchell and Bruce Jessen, who delivered for the post-9/11 CIA an interrogation regimen modeled on what Senate interrogators called “learned helplessness,” settled a case brought by three survivors of CIA black sites and the family of a man, Gul Rahman, who froze to death in one of them.
Though the terms of the settlement are not public, and the case was not a criminal trial, both attorneys and human rights advocates consider it a major victory in the long-thwarted effort at imposing accountability for torture. It also could serve as a potential precedent for other torture survivors seeking damages.
Mitchell and Jessen continue to assert that they are not responsible for either the physical or mental abuse the three men suffered nor for Rahman’s death. But they did say in a joint statement on Thursday that “it is regrettable that Mr. Rahman, Mr. Salim, and Mr. Ben Soud suffered these abuses.”
No other legal case seeking to hold CIA torturers to account has proceeded this far, as the Justice Department has typically—and successfully—argued that all aspects of torture are state secrets beyond the reach of the courts.
But Mitchell and Jessen, along with the CIA, had a contingency plan for just this scenario. On Dec. 15, 2011, the U.S. government signed what’s called an indemnification agreement with Mitchell and Jessen for non-criminal legal liabilities they could encounter as the result of their work for the agency. Under that plan, it is stated that: “Any expenses actually and reasonably incurred by Mitchell or Jessen shall be paid by the U.S. Government in advance of the final disposition of any related Proceeding.”
Explicitly envisioned in the agreement were “fees, expenses, disbursements and retainers of attorneys, accountants, private investigators, expert witnesses and other advisors [and] court costs.” The liabilities covered include “all judgments, damages, losses, fines, penalties, excise taxes, amounts paid in settlement and other liabilities.”
It is unknown whether the settlement reached on Thursday has a financial component; meaning the taxpayers may not be on the hook for anything. But in the likelihood that there is a financial component, the maximum the government agreed to stake Mitchell and Jessen is $3,871,998.994.
Legal experts say that the language in the indemnification agreement makes the government culpable for paying that total.
“Based on my reading of the indemnification agreement and what I know about the case, the taxpayer is on the hook,” Neil Gordon, an investigator with the Project on Government Oversight, told The Daily Beast. “The government’s use of such agreements removes nearly all risk from contractors and puts it on taxpayers. If contractors need such protection, maybe it’s time to consider assigning these functions to government employees.”
Mitchell and Jessen have gotten taxpayers to pay their legal bills before, thanks to a preceding indemnification agreement signed in 2007. (The 2011 indemnification agreement arose after Mitchell and Jessen disbanded a business that formally contracted with the CIA.) Between 2007 and 2012, the duo billed the CIA for $1.1 million in legal expenses, according to the 2014 Senate torture report.
The CIA declined comment for this story. Attorneys for Mitchell and Jessen did not respond to The Daily Beast’s inquiries about whether they would seek the federal government to pay their expenses.
It’s unclear whether, after Thursday’s settlement, other CIA torture survivors will now seek similar lawsuits. Many, if not most, survivors are unreachable, and those who are may not be willing to tell their stories.
But human-rights advocates consider the case going forward at all to be a key precedent. “[T]here’s no longer an unbroken streak of [torture] cases being kept out of court and cases ending with total impunity,” said Dror Ladin, the ACLU attorney who took the lead on the case. “It establishes that courts are fully capable of presiding over a discovery process even over CIA black sites.”
Thursday’s settlement occurred just days after the judge in the case ruled that it could move to trial. Not only did Judge Justin Quackenbush permit the suit to proceed—rather than dismissing out of hand a court’s ability to hear their case—he permitted the torture survivors’ attorneys to depose former CIA officials, including top lawyer John Rizzo and Counterterrorism Center chief Jose Rodriguez. (Current CIA deputy Gina Haspel did not have to undergo a deposition sought by the torture survivors.) Quackenbush also permitted survivors’ attorneys to obtain and disclose torture-relevant documents. And Quackenbush also rejected the contractors’ argument that their work designing the program placed them outside the realm of culpability for torture they did not personally inflict.
That latter contention led Mitchell and Jessen to a surreal place: arguing that they were akin to manufacturers of poison gas used by Nazis in the Holocaust.
“This is obviously a historic landmark case on a number of fronts,” said Sarah Dougherty, an attorney with Physicians for Human Rights. “Mitchell and Jessen are forced to pay a financial price for their actions. This case sets a number of precedents in terms of fighting impunity for torture.”
Ladin, meanwhile, heralded the message the case sent to would-be torturers—on a day when President Trump resurrected a false historical claim involving brutal treatment of Muslims.
“This is important for what it does for survivors and the hesitation it causes to those who might torture in the future,” Ladin told The Daily Beast.